Wielding justice as a political tool bodes ill for Latin America

By Gaspard Estrada

In April, former Brazilian president Luiz Inacio Lula da Silva surrendered to police to begin serving a 12-year prison sentence for passive corruption and money laundering. It was just the latest in a string of arrests and prosecutions of Latin American political and economic leaders — a trend that began four years ago, with the eruption of the Brazilian Odebrecht Group’s bribery scandal. However, while a crackdown on corruption is badly needed, the increasingly politicized approach is placing the entire region on a slippery slope.

With Latin America’s governments and legislatures facing a profound crisis of credibility, the judiciary has become a major player in some countries. In Brazil, for example, figures involved in Operation Car Wash (an ongoing investigation into large-scale corruption at the state-owned oil company Petrobras) — such as Deltan Dallagnol, the lead prosecutor, and Sergio Moro, the federal judge in charge of the inquiry — have become true political power brokers. Their influence now far exceeds their roles as attorneys, magistrates, or judges of first-instance courts.

The real problem, however, is that officials like Moro have transformed judicial action against corruption into a moral and political crusade, for which they are willing to bend the law. Supreme Court magistrates argue that, in order to get Lula in jail before the 2018 presidential campaign, Moro has disobeyed the rules of criminal procedure and manipulated the mechanisms of preventive detention. Moro himself admits in his verdict that he is convicting Lula without any direct evidence of an illicit act.

Prosecuting corrupt politicians and business leaders is the kind of cause that would usually receive broad popular support. Yet, because of the judiciary’s activist approach, 51 percent of Brazilians disapprove of Moro’s actions, which include Lula’s 2017 corruption conviction.

Latin America has a long history of politicized justice and judicialized politics. As the nineteenth-century Mexican president Benito Juarez reportedly put it, “For my friends, grace and justice; for my enemies, the law.” Unfortunately, that sentiment remains all too popular in much of Latin America today.

In Mexico, the attorney general’s office — which has been without a leader for months — has been reluctant to pursue politicians close to the government who were, according to the US Department of Justice, involved in Odebrecht-related bribes. By contrast, the same office has eagerly pursued a money-laundering probe into Ricardo Anaya, one of the opposition’s presidential candidates.

Yet, even as Anaya has been a victim of judicial activism, one of his top advisers is Santiago Creel, who orchestrated the prosecution 13 years ago of former Mexico City mayor Andres Manuel Lopez Obrador, in order to prevent Obrador from running for president.

In yet another example of the politicization of corruption investigations, Peruvian president Pedro Pablo Kuczynski resigned on the eve of an impeachment vote precipitated by his ties to Odebrecht, after the release of video recordings that showed key allies trying to buy the support of opposition lawmakers. However, those videos were not exposed as a result of an independent judicial investigation, but rather as part of a political dispute between the children of former dictator Alberto Fujimori over control of Congress (and effectively over the country).